You can’t uphold the law by breaking the law

09 januari 2018

ALDE invited us to speak at their annual New Year's Seminar. We talked about how the Rule of Law can only start with the Union taking an exemplary role by strictly adhering to the rulings of the European Court of Justice and that it is urgent for the EU to become more transparent in its legislative processes.

Share this article

Thank you very much for the opportunity to talk about these urgent topics. It is a pleasure to be here at the ALDE new year's seminar.

For us it might be stating the obvious that a Union can only successfully protect democracy, the rule of law and fundamental rights if it performs an exemplary role on all these points. And unfortunately it is currently also obvious that the EU is not yet fulfilling that role.

Two points need to be stressed. For one the EU should vigorously respect the rulings of the European Court of Justice and secondly, the EU must become (even) more transparent in its legislative processes.

We have seen the Court of Justice of the EU (thanks to tireless work by key ALDE MEPs like Sophie in't Veld) rule against the proposed deal between Canada and the EU on PNREU Court rules that draft EU/Canada air passenger data deal is unacceptable, the registration of air passengers. But the consequences of this ruling for the EU/Australia and EU/US agreements have been left wilfully unexplored.

We have seen the Court of Justice rule against the mandatory blocking of internet access and social media services while at the same time seeing this ruling being explicitly circumvented through the introduction of an upload filterLead Parliamentarian for Culture Committee defends upload filtering in the proposed Copyright Directive.

We've seen the EU adopt the Charter of Fundamental Rights, which requires that restrictions on our rights have to be necessary and provided for by the law, while also seeing the Europol Regulation giving unaccountable powerEuropol: Non-transparent cooperation with IT companies to Europol's Internet Referral Unit to make referrals not based on the law, but based on terms of service for the "voluntary consideration" of internet companies. There is no review process for these referrals, no statistics on subsequent investigations and —ironically in light of the data retention demands for records of innocent people— no retention of the associated evidence.

The Union can’t afford its current lackadaisical attitude towards the rulings of the European Court of Justice.

When it comes to transparency we have seen a shift from the traditional treaty-based decision-making process of legislation in the EU towards a non-democratic, non-accountable and non-transparent process of legislating: the trilogues.

The EU Ombudsman has demanded more transparencyDecision of the European Ombudsman setting out proposals concerning the transparency of Trilogues around the trilogues. She proposes that the documents in and around the trilogue negotiations —the trilogue dates, the initial positions, the agendas, the "four column documents", the notes, the list of political decision makers involved and the final compromise texts— should all be made available to the public. This too is underpinned by a decision of the EU Court of Justice which states that the ability of EU citizens to find out the considerations that underpin legislative action is a precondition for the effective exercise of their democratic rights.

And very recently the Dutch COSAC delegation has also recommendedOpening up closed doors: Making the EU more transparent for its citizens to make the EU more transparent to its citizens. Their prime recommendation is, once again, for the EU to stick to its own law, in this case the Transparency Regulation and thus make legislative documents public in a systematic way and without any delay. Too often is too hard for people like me —civil society as the representation of citizens— to get access to the documents that they need to do their work.

So my ask here today for this Alliance of Liberals and Democrats for Europe is twofold, and I ask it with urgency:

Firstly, the Union can't afford its current lackadaisical attitude towards the rulings of the European Court of Justice. Due process starts with respecting the law. Or in other words: you can't uphold the law by breaking it.

And secondly, ALDE should support the Dutch perspective on transparency of the EU and at a minimum argue for a full implementation of the European Ombudsman's position on the trilogues.

Because we can only develop a Europe of values by defending those values when it is difficult. And we develop a Europe of values by making decisions in public and not in closed-door trilogues. We should empower citizens by making the institutional changes necessary to ensure that citizens are truly heard.

Many thanks to Joe McNamee of EDRi whose help with this text was invaluable. Many of the words are his (but only the good ones).